The Ninth Circuit Court of Appeals today released an opinion in USA v. CHAPMAN, No. 07-50000, a criminal appeal. The panel consisted of David R. Thompson and Kim McLane Wardlaw, Circuit Judges, and Edward C. Reed, Jr., District Judge.

WARDLAW, Circuit Judge:
Lee Chapman appeals his misdemeanor conviction under 18 U.S.C. § 111(a) for forcibly resisting, opposing, impeding, and interfering with a federal officer engaged in official duties. Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MENDOZA, No. 06-50447, a criminal appeal. The panel consisted of Thomas G. Nelson, Richard A. Paez, and Jay S. Bybee, Circuit Judges.

T.G. NELSON, Circuit Judge:
Paul Mendoza appeals his convictions on two counts of subscribing to a false income tax return in violation of 26 U.S.C. § 7201. Mendoza contends that the eight-year delay between his indictment and his arrest violated his Sixth Amendment right to a speedy trial. He further contends that the district court plainly erred when it ordered restitution during sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. I. Background Mendoza’s conviction was based on two income-tax returns that underreported his income. Mendoza worked for a management company in Los Angeles, California called Nobel Marketing Company where he was in charge of administering Nobel Medical Clinic. As the administrator, Mendoza was authorized to deposit clients’ checks into the clinic’s bank accounts, but he was not a signatory on the accounts. During 1989 and 1990, Mendoza embezzled approximately $285,000 from the clinic by personally collecting some of the clinic’s checks and depositing them into his own bank accounts or cashing the checks at a check-cashing company. The money from these transactions was not reported on his 1989 or 1990 tax returns. During the Internal Revenue Service’s (”IRS”) investigation of Mendoza’s failure to report the money on his income . . .

The opinion and concurrence filed May 8, 2008, slip op. 5135, are amended as follows:
1. At slip op. 5144, lines 7-12, delete the following sentences:
However, the government in that case took additional steps beyond simply entering the defendant’s arrest warrant into the law enforcement system. The government contacted Unsolved Mysteries and America’s Most Wanted, which aired segments on the case over twenty times in the United States and at least once in Mexico. Id. at 1115. Replace with the following sentence:
However, the government in that case took additional steps beyond simply entering the defendant’s arrest warrant into the law enforcement database system and the district court specifically found that the . . .

BYBEE, Circuit Judge, concurring:
Appellant Paul Mendoza was found guilty by a jury of his peers of filing false tax returns for failing to report over $285,000 in funds he embezzled from his employer. Today we are forced to overturn his conviction. I join the majority opinion because I believe we dutifully applied Doggett v. United States, 505 U.S. 674 (1992); I write separately because the facts before us demonstrate how Doggett requires a presumption unsupported by the record. Because the government did not make even a single effort to notify Mendoza of his indictment, we must find the government responsible for the constitutionally impermissible eight-and-a-half-year delay between Mendoza’s indictment and arrest. Nevertheless, we might not have been required to set aside Mendoza’s jury verdict but for Doggett’s requirement that we presume that the delay prejudiced Mendoza. In this case, it appears Mendoza suffered no prejudice. Mendoza was a manager at a medical clinic in Los Angeles, where his duties included depositing clients’ checks to the clinic’s bank account. Instead, Mendoza kept the money for himself. Over a two year period, Mendoza managed to embezzle $285,135.26, none of which he chose to report to the IRS. After being served, through his attorney, with a subpoena to provide handwriting and fingerprint exemplars for. . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. CARUTO, No. 07-50041, a criminal appeal. The panel consisted of Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Claudia Wilken, District Judge.

WILKEN, District Judge:
Elide Caruto was convicted of one count of importation of cocaine in violation of 21 U.S.C. §§ 952 and 960 and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. She argues that her trial was fundamentally unfair because the district court allowed the prosecution to emphasize in its closing argument omissions in the brief post-arrest statement she gave before invoking her Miranda rights. This closing argument, she contends, improperly penalized her for cutting the interview short by exercising her Miranda rights. We hold that the prosecutor’s argument, emphasizing omissions from Caruto’s post-arrest statement that exist only because she invoked her right to counsel under Miranda, constitutes a violation of Caruto’s right to due process. I. On the evening of February 6, 2006, Caruto was arrested at the Calexico, California port of entry when Customs and Border Protection officers discovered, in the gas tank of her truck, thirty-two packages containing a total of seventy-five pounds of cocaine. Late that night or early the next morning, Immigration and Customs Enforcement Special Agents Matthew Kelley and Tim Ballard interviewed Caruto. After the agents read Caruto her Miranda rights, she signed a waiver and agreed to make a statement. Five to seven minutes later, Caruto invoked her right to counsel, and the interview ended. The only record of the interview is a set of . . .

The opinion filed on May 12, 2008, is amended as follows: On slip opinion page 5230, delete footnote 2. On slip opinion page 5241, lines 1-2, replace the sentence, “In fact, Caruto entered a continuing objection and was instructed by the court to stop objecting.” with “In fact, Caruto entered four objections, all of which were overruled, to the prosecutor’s discussion of Caruto’s omissions, and those objections were not limited to `discrete comments.’ ” . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. GIBERSON, No. 07-10100, a criminal appeal. The panel consisted of J. Clifford Wallace and Mary M. Schroeder, Circuit Judges, and Roger T. Benitez, District Judge.

WALLACE, Senior Circuit Judge:
Giberson appeals from the district court’s denial of his motion to suppress evidence of child pornography found on his personal computer, which led to his conviction for receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He also appeals from his sentence, arguing the district court erred in sentencing him for both possession and receipt of child pornography. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm his conviction, vacate his sentence, and remand. I. On February 24, 2003, a North Las Vegas Police Department officer stopped Giberson because his license plates had . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. HINKSON, No. 05-30303, a criminal appeal. The panel consisted of Procter Hug, Jr., M. Margaret McKeown, and William A. Fletcher, Circuit Judges.

W. FLETCHER, Circuit Judge:
Following a two-week trial in federal district court in Boise, Idaho, a jury convicted David Roland Hinkson of soliciting the murder of three federal officials. The government’s star witness supporting the conviction was Elven Joe Swisher. Wearing a Purple Heart lapel pin on the witness stand, Swisher testified that he had told Hinkson that he was a Korean War combat veteran and that Hinkson, impressed by Swisher’s military exploits, solicited him to kill the officials. The government maintained in its opening statement to the jury that Swisher was a Korean War combat veteran, and it maintained throughout the trial that Hinkson’s understanding of Swisher’s military exploits showed that he was serious in his solicitations of Swisher. The government now concedes that Swisher neither served in combat nor earned any personal military commendations, and that Swisher presented a forged military document in court and repeatedly lied under oath at trial about his military record. On appeal, Hinkson makes three arguments. First, he argues that the district court wrongly precluded him from introducing evidence showing that Swisher presented a forged document and lied on the stand. Second, he argues that the . . .

McKEOWN, Circuit Judge, dissenting:
There is no honor in lying about one’s military record. Indeed, Elven Joe Swisher joins a long line of luminaries accused of puffing and distorting their military service. But a witness discredited on a collateral issue–his military service–is not grounds to reverse a murder-for-hire conviction that was corroborated by independent evidence, particularly when defense counsel had full opportunity to crossexamine the witness on that subject. The question in this case is whether David Hinkson solicited Swisher to murder a federal judge and other public officers, not whether Swisher lied about his military service. The district court determined that information about Swisher’s military service was not “new”. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MARLER, No. 07-30181, a criminal appeal. The panel consisted of Andrew J. Kleinfeld, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges.

TASHIMA, Circuit Judge:
Coby James Marler appeals the sentence imposed following his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We must decide whether the fact that a defendant is on escape status at the time he commits another offense means that the escape and the subsequent offense are “related” for purposes of calculating the defendant’s criminal history score under United States Sentencing Guidelines Manual (”USSG”) § 4A1.2(a)(2), even though the two offenses are not related in any other way. The district court rejected Marler’s argument that his escape offense was related to his subsequent robbery conspiracy offense and sentenced Marler to 57 months’ imprisonment. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We agree with the district court and therefore affirm the sentence. BACKGROUND In April 2002, Marler suffered a state felony conviction in Montana for robbery and received a twelve-year sentence. On January 5, 2005, he escaped from custody. He was arrested on January 11, 2005, by officers of the Great Falls, Montana, Police Department for conspiring with Melissa Wilson to rob the casino where Wilson worked. The scheme was uncovered when Wilson’s father discovered bullet holes, shell casings, and a hand-drawn map of the casino in Wilson’s residence. Wilson told officers that she wanted to “get back at the casino” because she had been unjustly accused of stealing money from the casino, and no one had apologized to her about the situation. In April 2005, Marler pled guilty in state court in Deer Lodge, Montana, to a charge of escape and received a twoyear sentence. In November 2005, he was convicted following . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. FERNANDEZ, No. 06-50595, a criminal appeal. The panel consisted of Alfred T. Goodwin, Diarmuid F. O’Scannlain, and William A. Fletcher, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether evidence obtained from an authorized wiretap investigation must be suppressed where the government continued to intercept a named target’s conversations despite his adoption of a new alias. I A At the heart of this case are six wiretap orders obtained by Drug Enforcement Agency investigators between May and October 2003 as part of an investigation of a drug trafficking conspiracy. At the outset of the investigation, the officers believed that the conspiracy was headed by an individual named Enrique Mendoza, and thus the first four wiretap applications submitted to the district court by the government named Mendoza, among others, as a target. While intercepting a conversation on August 8, 2003, the investigators for the first time learned that “Enrique Mendoza” was merely an alias used by their target suspect; they concluded that he adopted a new alias “Jorge Acosta,” based on their recognition of his voice. In their subsequent status reports and wiretap applications to the district court, the investigators gave detailed reports of intercepted calls involving “Acosta,” but they did not inform the district court of their belief that “Mendoza” and “Acosta” were the same person. Rather, the government’s subsequent wiretap applications . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. VASQUEZ-LANDAVER, No. 07-50226, a criminal appeal. The panel consisted of Kim McLane Wardlaw, Ronald M. Gould, Sandra S. Ikuta, Circuit Judges.

IKUTA, Circuit Judge:
Guillermo Antonio Vasquez-Landaver (Vasquez) appeals his 90-month sentence and underlying conviction for being found in the United States after being deported. He contends: (1) the district court erred in not allowing him to present any evidence of duress and in not giving a jury instruction on a duress defense; and (2) his within-Guidelines sentence is unreasonable and was an impermissible punishment for going to trial. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. I Vasquez was born in El Salvador in 1971, and first came to the United States at the age of 18. Vasquez has been deported from the United States on eight separate occasions; most recently on September 15, 2004. On December 10, 2004, Vasquez and five others were arrested by Border Patrol agents in an area near Tecate, California, after agents responded to a seismic intrusion device activation. Vasquez admitted he was a citizen and national of El Salvador, and that he was in the United States illegally. The agents took Vasquez to a border patrol checkpoint station for further processing, where computer checks revealed that Vasquez had an extensive immigration and criminal record and had been frequently deported. While in custody, Vasquez described his route to the United States as follows: [He] left his home in El Salvador on October 17, 2004. He traveled by car, and then bus, to the El Salvador/Guatemala border. Vasquez crossed into Guatemala using an El Salvador border crosser card. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. DALLMAN, No. 05-30349, a criminal appeal. The panel consisted of William C. Canby, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

GOULD, Circuit Judge:
Kenneth Dallman appeals the 33-month sentence he received following his convictions for possession and importation of marijuana and conspiracy to possess marijuana. Dallman and two other individuals were arrested by United States Border Patrol agents after the agents observed the men carrying six large duffle bags along an abandoned logging road just south of the U.S.-Canada border. The bags contained about 142 pounds of marijuana. Dallman contends that his sentence is unreasonable because the district court erroneously found that he was accountable for the aggregate quantity of marijuana that the three men carried into the United States and denied his request for a downward departure based on aberrant behavior. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I Early in the morning on August 16, 2004, two U.S. Border Patrol agents patrolled an abandoned logging road that crosses the U.S.-Canada border near Danville, Washington. At approximately 4:15 a.m., while the agents walked northward along the road, they noticed Dallman, Michael Thistlewaite, and John Souza carrying large bundles and walking southward. After seeing or hearing the agents, Thistlewaite ducked under a tree on one side of the road, and Dallman and Souza ran to the opposite side of the road and took cover in the brush. The agents arrested Thistlewaite after observing that he was tangled in two large duffle bags that were tied together so that. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. PEREZ, No. 07-10289, a criminal appeal. The panel consisted of John R. Gibson, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge:
We are called upon in this case to decide whether a person on supervised release has a right to cross-examine the laboratory technician who tested a urine sample containing an illegal drug, where: (1) the test report itself stated the sample was “dilute”–meaning the urine sample had been combined with another liquid at some point before or during the testing; (2) the evidence presented showed the person on supervised release did not have an opportunity herself to dilute nor add . . .